You’re in luck if you sell FUCK ME formalwear, own the NO SHIT diner, or produce HEY ASSHOLE pepper spray. You’ll soon be able to head over to the website of the United States Patent and Trademark Office (USPTO) and register those trademarks. Because the U.S. Supreme Court has just ruled in the Brunetti case that the statutory bars on registering “scandalous” and “immoral” trademarks are unconstitutional.
Oral argument at the U.S. Supreme Court yesterday in Iancu v. Brunetti centered on the word FUCT. Well, sort of. As one of the lawyers fussily put it, it centered on “the equivalent of the past participle form of the paradigmatic profane word in our culture.” Right. FUCT.
The case is all about offensive, shocking and profane language. Yet the Justices and the parties’ attorneys pussyfooted around for an hour, steering the argument clear of anything even remotely R-rated. The attitude that there are several words so offensive they cannot be spoken aloud dominated the hearing. It may well dominate the Court’s eventual opinion.
Here’s the backdrop for all of that tiptoeing around those unspeakably naughty words.
I’m very excited to be a new contributor to Strong Language, after my two previous salacious guest posts on scandalous trademarks. I’ve been the author of Gilson on Trademarks, a treatise on U.S. trademark law, since 2006, and I’m delighted to make this foray into sweary territory. Just don’t tell my parents.
Now, on to our story. Engine 15 Brewing Company applied to register the trademark NUT SACK DOUBLE BROWN ALE for beer. An attorney at the U.S. Patent and Trademark Office refused registration on the ground that the mark was scandalous, meaning that it would offend “a substantial composite of the general public.” The applicant appealed, putting the ball in the Trademark Trial and Appeal Board’s court. Here’s the beer’s label, which the owner did not try to register:
Before we see how the Board ruled, though, let’s start the ball rolling by looking at the USPTO’s record on testicles, scrotum and related slang terms.
We’re pleased as fuck to bring you another guest post by trademark lawyer Anne Gilson LaLonde, the author of Gilson on Trademarks (a legal treatise on U.S. trademark law) and of the extremely popular Strong Language post “Trademarks the Government Doesn’t Want You to See.” We’re doubly pleased to announce that Anne will be joining our merry band as a regular contributor.
We’re pleased to introduce Strong Language readers to Anne Gilson LaLonde, the author of Gilson on Trademarks, a legal treatise on United States trademark law. Anne writes and speaks about many different aspects of trademark law, but this topic may well be her favorite.
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Under the federal trademark statute, trademarks that are found to be “scandalous” can’t be registered with the United States Patent and Trademark Office. While this doesn’t stop trademark owners from using these marks, they can’t rely on various legal advantages that come with federal registration.